The Court of Appeal of England and Wales has handed down a judgment in the judicial review proceedings brought by a group of antique dealers and collectors (Friends of Antique Treasures Limited, or “FACT”) against the Ivory Act 2018 (the “Act”), one of the world’s toughest bans. In November 2019 Mr Justice Jay dismissed FACT’s claim at the High Court but acknowledged that the case involved important and wide-ranging issues and expressed sympathy for FACT’s arguments, allowing an appeal to the Court of Appeal. For more details on the provisions of the Act and an overview of Mr Justice Jay’s decision, you can read our previous blog: here.
After hearing the claim on 24 and 25 February 2020, the Court of Appeal handed down a judgment dismissing FACT’s claim on 18 May 2020, but endorsing Justice Jay’s previous findings at the High Court that the Government’s impact assessment considerably understated the impact of the Act on businesses and overestimated the success the Act would have in tackling the illicit ivory market. We hope that this recognition at the High Court and the Court of Appeal will influence the EU and other countries considering a similar ban and will be taken into account when the UK Government implements its guidance on the s.2 Outstanding Exemption.
Constantine Cannon LLP has represented FACT (and prior to its incorporation, its founding members) since April 2018 when the Act was first announced and as part of this work over the past 2 years, we have:
- scrutinised this complex body of legislation, making representations to Government and examining and challenging the practicalities of the proposed measures (not yet published) relating to the operation of the s.2 Outstanding Exemption;
- examined the legal systems and proposed changes to the trade in ivory by other countries around the world;
- researched and analysed the evidence and risks of a legitimate antiques market to ivory poaching; this has served as a useful tool when making representations to the EU on its own tightening of the restrictions; and
- together with FACT and the art market, devised a practical licensing system to mitigate the risks of illicit ivory whilst allowing a legal trade in cultural artefacts to continue for submission to the EU on behalf of the art market as a self-regulating system.
Whilst the Court of Appeal’s decision is a huge disappointment to the art market and those who collect cultural objects which often contain ancient ivory, the litigation has allowed us to devise solutions to mitigate the impact of the Act on collectors and businesses, which impact can only be fully understood by those with an in depth understanding of the legal systems around the world, the upcoming proposals and the complexities in the extra-territorial application of the Act, which is far-reaching. We continue to support the members of FACT and the art market more broadly in offering solutions to mitigate the significant impact of the Act on their businesses and to ensure that they can continue to use their expertise in unique cultural objects, despite the draconian measures within the Act. Despite the Court of Appeal’s decision, we are extremely pleased with the complimentary feedback we have received from our clients and the art market:
“Everyone is so impressed with the legal team and counsel. Nothing but praise and admiration for not only fighting our corner but grasping the complexity of our profession. We all feel it was the best fight we could have put up.”
“My sincere thanks and congratulations to you and our entire legal team. You were all truly amazing. The subject matter is both dense and rarified, but you mastered it. The presentation was superb.”
“Wouldn’t have missed it for the world. Tom de La Mare QC was utterly brilliant”
All of us at Constantine Cannon, and the collectors and dealers behind FACT (and those who have supported FACT) fully endorse the fight against the trade in modern ivory and condemn elephant poaching. However, as a result of the Act, numerous dealers and collectors across the UK will be prevented from conducting their business and/or collecting unique cultural objects which happen to contain ivory. For this reason, FACT may yet seek permission to appeal further to the Supreme Court. A decision will be made within the next week.
The implementation of the Act has been delayed by more than 12 months already. However, dealers and collectors who have not already put steps in place to mitigate the impact of the Act or to understand the complexities of its application and what this means internationally, must act now.
The trade and cross-border movements of antique ivory are an immensely complex topic and given that violating such legislation carries criminal penalties, it must not be taken lightly. You should seek the advice of specialists, particularly when considering the extra-territorial application of the Act and moving your collections abroad. We represent a wide number of clients in the art industry, and the Act is not relevant to all our clients. We will therefore provide further guidance and information to those specifically interested in this topic outside of our regular blog and newsletter. If you would like to hear more on the practicalities of the restrictions once in force, or discuss the steps you can take to mitigate the impact of the Act on your collection or business, please contact us at: firstname.lastname@example.org.
The Court of Appeal judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/649.html
By Fionnula Rogers and Emelyne Peticca